# Arvind v. State of U.P

- **Citation:** (2023) 7 ILRA 206
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-18
- **Case number:** Jail Appeal No. 86 of 2019
- **Bench:** Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-v-state-of-u-p-50405
- **Pages:** 7

## Headnote

Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Section 3(1) - Appeal against conviction -
Rigorous imprisonment - Code of Criminal
Procedure, 1973 - Section 313 - As per
prosecution story, on basis of information
of informant and approved gang chart, on
06.11.2014 F.I.R was lodged against
appellant
along
with
co-accused
-
Allegation that accused appellants have a
organized gang, for personal gain of gang,
extracts illegal money by committing
offences
like
gang
rape,
murder,
kidnapping and deletion of evidence of
offence - Trial court framed charges -
Contention by appellant that witnesses of
prosecution are police personnel, their
testimony was not reliable - No eyewitness in case - Sentence imposed was
harsh , deserved to be modified to period
already undergone. (Para 4, 12, 17)

Held, as per custody certificate, issued by
Jail Superintendent, appellant has actually
languishing in jail including remission for
period of 9 years, 4 months and 12 days,
about a decade on that date however, on
date of judgment he was in incarceration
about 9 years and 7 months - Appellant
was at verge of completing his term of
sentence - He was in jail for long period
but no adverse conduct reported - There
are fair chances of reformation of accused
and to join mainstream of social milieu
and to contribute towards developments
of
society
-
In
these
circumstance,
reduction of sentence to period of already
undergone, will serve ends of justice.
(Para 31)

Appeal partly allowed. (E-13)

List of Cases cited:

## Text

206 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 7 ILRA 206
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.05.2023

BEFORE

THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Jail Appeal No. 86 of 2019

Arvind ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Rakesh Kumar Gupta (A/C)

Counsel for the Opposite Party:
A.G.A.

Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Section 3(1) - Appeal against conviction -
Rigorous imprisonment - Code of Criminal
Procedure, 1973 - Section 313 - As per
prosecution story, on basis of information
of informant and approved gang chart, on
06.11.2014 F.I.R was lodged against
appellant
along
with
co-accused
-
Allegation that accused appellants have a
organized gang, for personal gain of gang,
extracts illegal money by committing
offences
like
gang
rape,
murder,
kidnapping and deletion of evidence of
offence - Trial court framed charges -
Contention by appellant that witnesses of
prosecution are police personnel, their
testimony was not reliable - No eyewitness in case - Sentence imposed was
harsh , deserved to be modified to period
already undergone. (Para 4, 12, 17)

Held, as per custody certificate, issued by
Jail Superintendent, appellant has actually
languishing in jail including remission for
period of 9 years, 4 months and 12 days,
about a decade on that date however, on
date of judgment he was in incarceration
about 9 years and 7 months - Appellant
was at verge of completing his term of
sentence - He was in jail for long period
but no adverse conduct reported - There
are fair chances of reformation of accused
and to join mainstream of social milieu
and to contribute towards developments
of
society
-
In
these
circumstance,
reduction of sentence to period of already
undergone, will serve ends of justice.
(Para 31)

Appeal partly allowed. (E-13)

List of Cases cited:

1. St. of Raj. Vs Banwari Lal & anr., Criminal
Appeal No. Nill of 2022 (SLP arising out of Diary
No. 21596 of 2020)

2. Satish Kumar Janyanti Lal Dabgar Vs St. of
Guj. (2015) 7 SCC 359

3. Alister Anthony Pareira Vs St. of Mah., (2012)
SCC 648

4. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC
1926

5. Deo Narain Mandal Vs St. of U.P., (2004) 7
SCC 257

6. Ravada Sasikala Vs St. of A.P., AIR 2017 SC
1166t

7. Jameel Vs St. of UP, (2010) 12 SCC 532

8. Guru Basavraj Vs St. of Karn., (2012) 8 SCC
734

9. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

10. St. of Pun. Vs Bawa Singh, (2015) 3 SCC
441

11. Raj Bala Vs St. of Har., (2016) 1 SCC 463

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. Heard Sri Rakesh Kumar Gupta,
learned Amicus Curiae for the appellant
7 All. Arvind Vs. State of U.P.
207
and learned A.G.A. for the State. Perused
the record.

2. This appeal has been filed by the
accused appellant Arvind against the
judgment and order dated 16.05.2019
passed by the Special Judge (Gangsters
Act)/Additional Sessions Judge, Court No.
5, Muzaffarnagar in S.T. No. 87 of 2015
(State Vs. Arvind and others) arising out of
Case Crime No. 532 of 2014, under Section
3(1) of U.P. Gangsters and Anti Social
Activities
(Prevention)
Act,
1986
(hereinafter referred to as the "Gangsters
Act"), Police Station Budhana, District
Muzaffarnagar whereby the appellant was
convicted under Section 3(1) Gangsters Act
for ten years R.I. with fine of Rs.15,000/-.
In default of payment of fine, he was
ordered to serve five months additional
imprisonment.

3. Aggrieved thus, by the impugned
judgment and order dated 16.05.2019, the
accused appellant Arvind preferred this
appeal. It may be added that there were 05
accused and they were charge sheeted in
trial court. The present appeal has been
preferred by accused-appellant Arvind.
Thus, present appeal is heard in respect of
appellant Arvind only.

4. Succinctly, the factual matrix of the
prosecution story is that on the basis of
information of informant S.H.O. Dhananjay
Mishra and approved gang chart, on
06.11.2014 in respect of crimes alleged to
have been committed by the appellant
alongwith co-accused, the case (F.I.R.) was
registered against accused Arvind, Pramod,
Monu alias Rakesh, Parveen and Sainki
alias Harshvardhan as Crime No. 532 of
2014, under Section 2/3 of the Act, 1986 It
was alleged in the F.I.R. that the accused
appellants have a organized gang, on the
basis of which who for personal gain of
gang extracts illegal money by committing
offences
like
gang
rape,
murder,
kidnapping and deletion of evidence of
offence and by this reason general public is
engulfed in their terror.

5. On the basis of gang chart, Chick
F.I.R. was registered and entries were
entered into Kaimi G.D and Carbon copy
of which was also prepared in the same
process. Investigation was entrusted to
S.H.O. Ajay Pal Gautam.

6. The Investigating Officer recorded
the statements of the witnesses, prepared
site plan after inspecting the place of
occurrence and after due investigation, he
also procured sanction for prosecution from
competent authority and after completing
due investigation, submitted against the
aforementioned accused/appellant under
Section 2/3 Gangsters Act.

7. The trial court framed charges
under Section 3(1) Gangsters Act, 1986.
The accused/appellant abjured the charges,
pleaded "not guilty" and claimed "to be
tried".

8. To bring home the charges,
prosecution
adduced
following
ocular
evidence examining following witnesses:-

Sl.
Nos.
Name
of
the
witnesses
Number
of PWs
1.
Inspector Dhananjay
Mishra, informant
PW-1
2.
Jaypal
PW-2
3.
H. C.P. 202 Rajkirti
Singh
PW-3
4.
Satpal Singh
PW-4
5.
Parab Singh
PW-5
6.
Pratap Singh
PW-6
7.
Constable
Arun PW-7
208 INDIAN LAW REPORTS ALLAHABAD SERIES
Malik
8.
H.C.P.
197
Mangeram
PW-8
9.
Inspector Ajay Pal
Gautam, I.O.
PW-9

9. To support the ocular version of the
prosecution,
following
documentary
evidence was also adduced and proved by
prosecution ocular witnesses.

Sl.
Nos.
Particulars
Ext.
Nos.
Proved
by
1.
Copy of Charge
sheet in Case
Crime No. 258
of 2014
Ext.
Ka-1
PW-1
2.
Copy of charge
sheet in Case
Crime No. 259
of 2014
Ext.
Ka-2
PW-1
3.
Gang chart
Ext.
Ka-3
PW-1
4.
Chick F.I.R.
Ext.
Ka-4
PW-1
5.
Copy of Chick
F.I.R. of Case
Crime No. 258
of 2018
Ext.
Ka-5
PW-2
6.
Carbon copy of
G.D.
Ext.
Ka-6
PW-3
7.
Copy of Chick
F.I.R. of Case
Crime No. 259
of 2018
Ext.
Ka-7
PW-4
8.
Carbon copy of
G.D. 37
Ext.
Ka-8
PW-8
9.
Photocopy
of
G.D. 33
Ext.
Ka-9
PW-8
10.
Photocopy
of
G.D. of Case
Crime No. 259
of 2014
Ext.
Ka10
PW-8
11.
Letter to S.S.P., Ext.
PW-9
Muzaffarnagar
Ka11
12.
Prosecution
sanction
Ext.
Ka12
PW-9
13.
Charge sheet
Ext.
Ka13
PW-9

10. After conclusion of prosecution
evidence, accused/appellant was examined
under Section 313 Cr.P.C., wherein he
stated that entire prosecution case is false.
He stated that false allegations have been
levelled against him by the prosecution
witnesses and false case has been lodged
due to partibandi.

11. The defence has also adduced
documentary evidence in the form of copy
of order dated 24.04.2018 passed by
Additional Sessions Judge, Court No. 15,
District Muzaffarnagar in S.T. No. 173 of
2015 (State Vs. Arvind and others) arising
out Case Crime No. 258 of 2014, under
Sections 364, 302, 201, 376(D), 34 I.P.C.
and order dated 24.04.2018 passed by
Additional Sessions Judge, Court No. 15,
Muzffarnagar in S.T. No. 172 of 2015
(State Vs. Arvind and others) arising out of
Case Crime No. 259 of 2014, under
Sections 302, 201/34 I.P.C.

12. Learned counsel for the appellant
submits
that
the
witnesses
of
the
prosecution are police personnel, as such
their testimony is not reliable. There are
material contradictions in the statement of
prosecution witnesses. The appellant has
falsely been implicated in the present case.
The cases shown against the appellant in
the gang chart are false. There is no eyewitness of the cases alleged to have been
committed by the appellant. The judgment
of the trial court could not be sustained in
7 All. Arvind Vs. State of U.P.
209
the eye of law. The appellant deserves to be
acquitted and accordingly, his appeal be
allowed.

13. Per contra, learned A.G.A.
opposed the arguments advanced by the
learned counsel for the appellant and
contended that out of the cases mentioned
in the gang chart the appellant has been
convicted in Case Crime Nos. 258 of 2014,
under Section 364 IPC & 259 of 2014,
under Sections 302, 201 IPC. The appellant
is undergoing life imprisonment. The
appellant is habitual offender and convicted
in various cases. The appellant has
organized a gang to commit the crime
against the society like gang rape, murder,
robbery, kidnapping etc. and concealment
of evidence. Thus the appellant created
atmosphere of fear and terror in the society.
He is a hardened criminal and generally no
one dare to adduce evidence against him.
The defence could not establish any
previous enmity with informant in their
cases. Therefore, argument of defence is
not tenable in this regard. The prosecution
has proved the charges against him beyond
reasonable doubt. There is no infirmity or
illegality in the impugned judgment and
order of the trial court, as such the appeal is
liable to be dismissed.

14. In view of the arguments put forth
by the learned counsel for the appellant and
the learned A.G.A. at this stage a brief
discussion of the evidence of prosecution
and defence appears, imperative to reach at
right conclusion.

15. P.W-1 Inspector Dhananjay
Mishra,
P.W-2
Jaipal,
P.W-3
Head
Moharrir Raj Kirti Singh, P.W-4 Satpal
Singh, P.W-5 Parab Singh and P.W-6
Pratap Singh have fully supported the
prosecution case in their examination. The
defence could not point out any material
contradiction in their cross-examination.

16. In all the cases mentioned in the
gang chart complainant and relevant
witnesses also examined, who proved in
their examination the correctness of the
gang chart. The gang chart was presented
before the competent authority to obtain
sanction for prosecution which was rightly
granted and the same is proved by P.W-9 as
Ext. Ka-12. The evidence adduced by the
defence could not fortify its stand in above
circumstances.
The
allegations
made
against the appellant are established beyond
reasonable doubts and the learned trial
court has rightly convicted the appellant
under Section 3(1) of Uttar Pradesh
Gangster
and
Anti-Social
Activities
(Prevention) Act, 1986.

17. In view of the above, learned
counsel for the appellant did not dispute the
findings rendered by the learned trial court
regarding
conviction
of
the
accused
appellant. He did not challenge the
conviction and confined his argument only
regarding sentence. He argued that the
sentence imposed is too harsh which
deserves to be modified/ reduced to the
period already undergone.

18. Learned A.G.A. opposed the
argument and contended that the appellant
is a hardened criminal and he has criminal
history of heinous offences against him,
therefore, he deserves no leniency in
awarding the sentence. The sentence
awarded by the learned trial court is just
fair and proper and as per gravity of the
offence.

19. In view of the above, the question
is whether the quantum of sentence is too
harsh and requires to be modified.
210 INDIAN LAW REPORTS ALLAHABAD SERIES

20. At this stage, brief legal resume
about sentencing is imperative. Sentencing
is an important task in the matters of crime.
In Criminal Appeal No. Nill of 2022 SLP
arising out of Diary No. 21596 of 2020
State of Rajasthan Vs. Banwari Lal and
Another, the Apex Court referring Satish
Kumar Janyanti Lal Dabgar Vs. State of
Gujrat (2015) 7 SCC 359, has observed
that the purpose and justification behind
sentencing
is
retribution,
incapitation,
rehabilitation and deterrence as well. One
of the prime objective of the criminal law is
imposition of appropriate, adequate, just
and proportionate sentence commensurate
with the nature and gravity of the crime and
the manner in which the crime is done.

21. In India there is no structured
sentencing policy. As a matter of course,
Indian parliament has not laid down any
sentencing
policy,
though
Malimath
Committee (2003) and Madhava Menon
Committee (2008) have asserted the need
of
sentencing
policy
in
changing
circumstances of the Indian society. In the
absence of any such policy sentencing has
been an issue of concerned before the
Courts.

22. In Alister Anthony Pareira V.
State of Maharashtra, (2012), SCC 648,
it has been observed by the Apex Court.

"thus, there is no straitjacket
formula for sentencing an accused on proof
of crime. The courts have evolved certain
principles: keeping in view the twin objective
of the sentencing deterrence and correction.
What sentence would meet the ends of justice
depends on the facts and circumstances of
each case and the court must keep in mind the
gravity of the crime, motive for the crime,
nature of the offence and all other attendant
circumstances."

23. A perusal of catena of the decision
of the Apex Court and various High Courts
indicates that criminal jurisprudence of our
country is reformative and corrective and not
retributive, as the court considers that every
accused is capable of being reformed and all
measures should be taken to give them an
opportunity of reformation to bring them into
the main social stream.

24. In Mohd. Giasuddin Vs. State of
AP, [AIR 1977 SC 1926], explaining
rehabilitary
&
reformative
aspects
in
sentencing it has been observed by the
Supreme Court:

"Crime is a pathological aberration.
The criminal can ordinarily be redeemed and the
state has to rehabilitate rather than avenge. The
sub-culture that leads to ante-social behaviour has
to be countered not by undue cruelty but by
reculturization. Therefore, the focus of interest in
penology in the individual and the goal is
salvaging him for the society. The infliction of
harsh and savage punishment is thus a relic of past
and regressive times. The human today vies
sentencing as a process of reshaping a person who
has deteriorated into criminality and the modern
community has a primary stake in the
rehabilitation of the offender as a means of a social
defence. Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our criminal
courts, since brutal incarceration of the person
merely produces laceration of his mind. If you are
to punish a man retributively, you must injure
him. If you are to reform him, you must improve
him and, men are not improved by injuries."

25. The term 'Proper Sentence' was
explained in Deo Narain Mandal Vs. State of
UP [(2004) 7 SCC 257] by observing:-

"Sentence should not be either
excessively harsh or ridiculously low.
While
determining
the
quantum
of
7 All. Arvind Vs. State of U.P.
211
sentence, the court should bear in mind the
'principle of proportionality'. Sentence
should be based on facts of a given case.
Gravity of offence, manner of commission
of crime, age and sex of accused should be
taken into account. Discretion of Court in
awarding sentence cannot be exercised
arbitrarily or whimsically".

26. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme
Court referred the judgments in Jameel vs
State of UP [(2010) 12 SCC 532], Guru
Basavraj vs State of Karnatak, [(2012) 8
SCC 734], Sumer Singh vs Surajbhan
Singh, [(2014) 7 SCC 323], State of
Punjab vs Bawa Singh, [(2015) 3 SCC
441], and Raj Bala vs State of Haryana,
[(2016) 1 SCC 463],

"reiterated that, in operating the
sentencing system, law should adopt
corrective machinery or deterrence based
on
factual
matrix.
Facts
and
given
circumstances in each case, nature of
crime, manner in which it was planned and
committed, motive for commission of
crime, conduct of accused, nature of
weapons used and all other attending
circumstances are relevant facts which
would enter into area of consideration.
Further, undue sympathy in sentencing
would
do
more
harm
to
justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system".

27. Thus, in many cases has tried to
provide clarity on the issue. Apex Court
has time and again cautioned guidelines in
this behalf.

28. Keeping in view the facts and
circumstances of the case and also criminal
jurisprudence prevalent in our country
which is reformative and corrective and not
retributive, this Court considers that no
accused person is incapable of being
reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

29. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
212 INDIAN LAW REPORTS ALLAHABAD SERIES
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

30. In the above backdrop of legal
scenario it is mentioned that in the present
appeal, the trial court convicting the
appellant, sentenced him for ten years
rigorous imprisonment with fine of Rs.
15,000/-, under Section 3(1) of Uttar
Pradesh
Gangsters
and
Anti-Social
Activities (Prevention) Act, 1986.

31. As discussed above, learned counsel
for the appellant did not challenge the
conviction of the appellant but only prayed the
court to reduce the sentence to the period
already undergone a Xerox copy is submitted
by the learned counsel for appellant is on
record. He submits that the FIR has been lodged
against him on 6.11.2014. As per the custody
certificate, issued on 15.3.2023, by Jail
Superintendent, Bareilly, the appellant has
actually languishing in jail including remission
for a period of 9 years, 4 months and 12 days,
about a decade on that date however, on the
date of judgment he is in incarceration about 9
years and 7 months. Thus the appellant is at
the verge of almost completing his term of
sentence. Learned counsel for the appellant
also submitted that the appellant is an
youngster of about 35 years. He was in jail for
such a long period but no adverse conduct has
been
reported
by
jail
Superintendent,
concerned. Thus, there are fair chances of
reformation of the accused and to join the
mainstream of social milieu and to contribute
towards developments of the society. In these
circumstance, reduction of his sentence to the
period of already undergone, will serve the
ends of justice.

32. Resultantly, the instant appeal is
partly allowed with following directions:-

(i) The judgment of the learned trial
court dated 16.5.2019 regarding conviction of
the appellant is confirmed and shall remain
intact.

(ii) In respect of his sentence of ten
years rigorous Imprisonment awarded by the
learned trial court is modified to the period
already undergone by the appellant.

(iii) The amount of fine of Rs.
15,000/- imposed and its default period, shall
remain intact.

(iv) The appellant be released
immediately, accordingly.

(v) Appellant shall deposit, if not
already deposited, the entire amount of fine
within four months from the date of this
judgment.

(vi) A copy of judgment be sent to
trial Court concerned, for necessary information
and compliance.

(vii) Trial court's record be remitted
back forthwith.

(viii) A sum of Rs. 5,000/- be
provided to the learned Amicus Curiae Sri
Rakesh Kumar Gupta, Advocate for rendering
his valuable help to the Court.
----------
(2023) 7 ILRA 212
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 5252 of 2022

Reena & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists: